Herrlich v. McDonald

McKinstry, J. The order of the Superior Court appealed from was made and entered February 18, 1887. Notice of appeal was filed and served April 14, and the undertaking filed April 18, 1887. A transcript on appeal, duly certified, was delivered by the clerk below to the appellant on the twenty-fifth day of May, served on respondent on the same day, and filed in this court on the 26th of May, 1887, within forty days after the appeal was perfected.

[580]Respondent moved to dismiss the appeal on the ground, amongst others, that the transcript was not filed within-the forty days. On the day of the service on him of the paper purporting to be a copy of the transcript, the attorney for respondent notified appellant that he refused to certify to the transcript as correct, in his notice pointing out certain alleged errors and mistranscriptions of the record or papers on file. But conceding there is any law or rule which requires the appellant to serve on the adverse party a copy of the transcript to be filed, it has not been made to appear to us, either by additional certificate of the clerk below or otherwise, that the alleged errors or mistranscriptions exist (unless it be in the notice of appeal).

Doubtless the respondent is entitled to have filed here, at the expense primarily of the appellant, a correct transcript of the record below. But it is not our province now to indicate how it can be obtained, proved, and substituted for the transcript actually filed if the. latter is incorrect. As against the certificate of the clerk, the mere statement of counsel that errors exist does not establish the fact.

From an examination of the transcript, it would seem that some of the papers printed in it are in no manner identified as having been used on the motion. But if the consequence of such omission shall be that the court here will refuse to look at such papers when the appeal is heard on the merits, the want of identification of some of the papers will not justify a dismissal of the appeal. Moreover, the absence of such identification is not urged by counsel for respondent as a reason for dismissing the appeal.

Respondent further contends,—1. That no appeal has been taken; 2. That no notice of appeal was filed or served.

In the certificate attached to the transcript on file, the clerk certifies that an undertaking on appeal in due form [581]